Freeman: Law, not policy, should dictate disclosure

Robert J. Freeman, executive director of the Committee on Open Government, said it was “contrary to law” to disclose parents’ names without their consent.

The lists were used last year and the year before to send cards before spring elections, supporting the budget and selected candidates, all of whom won. This year, because of the controversy surrounding the release of parents’ names and addresses, the president of the teachers’ union said the list would not be used. The three union-endorsed candidates won the election in a heated five-way race.

The Enterprise broke the story in January (go online to www.altamontenterprise.com under “Archives” for Jan. 31, 2008, “Use of GCSD directory legal?”) and it was picked up by other media.

Freeman wrote, “…Students’ names or other aspects of records that would make a student’s identity easily traceable, including the names of students’ parents, must in my view be withheld in order to comply with federal law absent receipt of the appropriate consent.”

Freeman went on, “In sum, it is my opinion that the district’s policy statements concerning directory information are unclear and inadequate, and because parents’ names constitute personally identifiable information relating to students and are not included within the district’s description of directory information, it was contrary to law to disclose parents’ names to the union or any third party absent consent by parents.”

Guilderland’s superintendent, John McGuire, received the opinion, by mail, on Monday and said he was surprised. “I had written some time ago,” he said, after comments from Freeman critical of the school had been printed. McGuire sent Freeman copies of the district’s relevant policies. “I wasn’t looking for an advisory opinion,” said McGuire.

McGuire said he had had two conversations with federal education department officials in Washington, D.C. whom, he said, “assured me we were in compliance and on solid ground.” McGuire asserted, “It’s all interpretive.”

He added, “I certainly respect Mr. Freeman and his role…We’ll look at his letter in more detail.”

New policy critiqued

The board has since adopted a new policy on directory information and its release, developed by its policy committee. Board member Catherine Barber, who chairs the policy committee, said the committee was clear it did not want lists of student addresses to be released.

Freeman also reviewed the new policy regarding access to records and wrote that several aspects are “clearly inconsistent with law.”

He cites a section entitled “Records Not Available for Public Inspection,” which lists several categories of records.

“While some of the records referenced might properly be withheld, others, such as portions of many of those records, such as evaluations, negotiation materials sought after a contract has been signed, employee grievances and disciplinary matters, must be disclosed,” states Freeman.

He also cites another section of the policy entitled “Records Available to Representatives of the Media,” which states that group information will be provided, “not a response to the salary of a specific individual.”

Freeman writes, “The Freedom of Information Law, however, has since 1978 required that a record be maintained and made available by all agencies that includes the name, public office address, title and salary of every public employee officer or employee of the agency.”

Freeman concludes, “From my perspective, the law, not an agency’s policy, determines whether or the extent to which records must be disclosed or may be withheld, and the subject matter list should indicate in reasonable detail, by subject matter, the kinds of records in possession of an agency, without regard to whether records are accessible to the public.

“In my experience, attempts to identify categories of records as accessible or exempt from disclosure lead to inaccuracies and failures to comply with law. It is suggested the district’s policies relating to the Freedom of Information Law be reviewed and reconsidered.”

McGuire responded that the new policy was written with input from the New York State School Boards Association “and from our own counsel,” Jeffrey Honeywell of Girvin & Ferlazzo.

McGuire said of Freeman’s statements, “As I understand it, this is an advisory opinion.”

He went on to say he would forward copies of Freeman’s opinion to the board members and the policy committee. And, he said, “I’m willing to raise these questions again with our attorney.”

McGuire concluded, “It’s important we’re true to the concept of open government and we want to be as transparent as possible. At the same time, we need to safeguard confidentiality for students and staff. We need to strike a balance.”